Judge allows witness to testify via Skype

Prosecutor fought new use of Internet service, citing concerns with confrontation clause, but judge hopes to start a trend

By Greg Land, Staff Reporter

A Douglas County judge ventured into new technological and legal territory during a recent criminal trial by allowing a witness to testify from Texas via Skype, the Internet-based video-phone service, after the defense attorney said his client could not afford to bring the witness to Georgia.

Douglas County Assistant District Attorney Nedal S. Shawkat opposed the use of Skype, arguing among other things that the confrontation clauses of the U.S. and Georgia constitutions require in-person testimony at trial.

Shawkat said he did not expect the motion to be granted “simply because it is a new area of the law, and because we weren’t able to find any cases where it was used.”

But Douglas County Superior Court Chief Judge David T. Emerson said that with the exception of a minor glitch or two when the signal went offline, the system worked quite well.

Emerson on May 1 will become the president-elect of the Georgia Council of Superior Court Judges, and he said, “I’m going to work to encourage the council to study rules on how to take advantage of this technology.” Emerson also is a member of the Georgia Supreme Court’s Technology Advisory Committee and a former chairman of the Georgia Courts Automation Commission.

Despite the testimony of the defense witness, Juan Salazar was convicted of cocaine trafficking. Emerson sentenced Salazar, 35, to serve 30 years of a 33-year sentence.

Salazar was behind the wheel of a tractor-trailer loaded with butternut squash and headed from Texas to Montezuma, Ga., when he was pulled over for at traffic violation in Douglasville on Jan. 28, 2010. A subsequent search of the truck turned up 95 kilos of cocaine found in secret compartment in the truck’s cab.

Salazar’s lawyer, Arturo Corso of Gainesville’s Corso Law Center, said that prior to trial, prosecutors had provided a lengthy list of possible witnesses the state might call to the stand. Among them was Richard Gutierrez, a broker from San Juan, Texas, whose business involves placing trucking companies with produce suppliers. Contacted by Corso, Gutierrez said he could testify that he had been in contact with the trucking company’s owner and knew that the truck was supposed to be driven by another driver, and that Salazar had only been assigned the job at the last minute, when the other driver got sick.

Corso, who was privately retained, asked Emerson to issue a certificate of materiality to compel attendance for the man’s testimony, which the judge declined.

On Jan. 28, Corso filed a “Motion for Leave to Present Live Testimony via Internet Video Phone (Skype).” It noted that, under ordinary circumstances, an out-of-state witness is paid 12 cents a mile each way and $25 a day to appear in court.

“Defendant Salazar, having been imprisoned prior to trial on these charges for one year is indigent and has no money to pay for said travel costs,” he wrote.

While disappointed in the verdict—which he plans to appeal—Corso applauded Emerson’s openness to the long-distance testimony.

“Judge Emerson didn’t make a snap decision,” he said. “He did his own research, and as near as we can tell there is no precedent, under state or federal rules of evidence, for using this in a criminal trial. The reason I think it was proper in this case is because the state was in possession of evidence outside of the state and beyond the court’s reach.”

The prosecutor said that, while law and precedent allow video testimony from children in molestation cases, the long-distance testimony presents a set of new issues.

Challenges in those types of cases “always [come] back to the confrontation clause,” said Shawkat. “There’s a lot of dicta as to why we have that clause. … There have been a lot [of] cases where the argument has been that the state has the right to confrontation. If the defendant has the right to confront his accuser in person, then the state should have the same right to confront that witness, too.”

The jury is also not privy to witness’ body language and demeanor via monitor, he added.

Corso argued that the confrontation clauses are to protect the defendant, so there was no reason to deny the motion because “we were the ones asking for it.”

The defense lawyer provided Gutierrez with a Skype camera, which the witness hooked up to his own computer in Texas, and the Internet-based testimony lasted about an hour.

“We had a big, flat-screen TV, and the witness was almost life-size,” Corso said.

“I think this story of justice-meets-technology is important,” he said, “because otherwise Mr. Salazar would have been denied his due-process right to provide testimony in his defense.”

The judge agreed. “I thought it went pretty well,” said Emerson. “The state objected and I overruled it. … The state’s got a statutory right to cross-examine the witness, and I felt that that right was assured.

“Mr. Corso brought in a nice digital TV; he had a camera and a laptop, and set it all up. There were one or two times we lost the connection [in] the middle of the testimony, but he got it back up and went on. The jurors were able to see the witness, and he could see the lawyers. I’m surprised no one’s done this before.”

The judge noted that video pleas, bond hearings, and other pre- and post-trial actions are often used in criminal proceedings, and teleconferencing in civil matters is routine.

“This would be an ideal situation for court interpreters, for example. We have [telephone] language lines they use all the time.”

Emerson said he didn’t think the order was particularly controversial.

Shawkat, the prosecutor, said he could see the value of using such technology-assisted testimony, but he added that many questions need to be answered before it becomes standard courtroom procedure.

“There’s no fighting it,” said the prosecutor. “We just need to know how we’re going to use it—if the Council of Superior Court Judges is going to promulgate a rule, or if the Legislature is going to lay out some method. We don’t want to see a system where [a] defendant can do it, but the state can’t.

“It also opens up other questions,” he said. “What’s going on the other end? Is someone else there with them? How do we know somebody’s not on the other end holding a gun on them?”

Shawkat acknowledged that Internet-based testimony could save a lot of money on bringing in witnesses to testify. He noted that Salazar’s co-defendant—the owner of the Texas trucking company—is expected to go to trial soon, and the district attorney’s office is looking at having to purchase five or six airline tickets to import witnesses.

“It will be very tempting to use it,” Shawkat said, “but what if I do and it gets overturned because of that? … I don’t want to save a little up-front and lose a lot later.”

The cases, he observed, involve the largest cocaine seizure in Douglas County history.

“Maybe I’ll try it sometime when the stakes aren’t so high,” said Shawkat.